FERNANDO v. THE MUNICIPAL COUNCIL OF KANDY.

[Full Bench.]

Present: The Hon. Sir Charles Peter Layard, Chief Justice,
Mr. Justice Moncreiff, and Mr. Justice Grenier.

FERNANDO v. THE MUNICIPAL COUNCIL OF KANDY.

C. R., Kandy, 12 12,713.

Property belonging to Buddhist temple-Liability for Municipal taxes-Exemption from taxation-Proclamation of 1818, section 21 Ordinance No. 7 of 1887, section 127-Ordinance No. 16 of 1900, section 2.

Property belonging to a Buddhist temple (except such property as is especially exempted under section 127 of Ordinance No. 7 of 1887, as amended by section 2 of Ordinance No. 16 of 1900) is liable to pay assessment tax imposed by the Municipal Council under the provisions of Ordinance No. 7 of 1887.

Section 21 of the Proclamation of 21st November, 1818, enacts as follows:-"The Governor, desirous of showing the adherence of Government to its stipulation in favour of the religion of the people, exempts all lands which now are the property of temples from all taxation whatsoever," &c.

Held, that this Proclamation referred only to taxes then existing or to similar taxes substituted for them, and not to taxes imposed by statute after the Proclamation.

THE facts and arguments sufficiently appear in the judgments.

Dornhorst, K.C. (with him Van Langenberg), for the Municipal Council (appellant).

Walter Pereira, K.C, for the plaintiff, respondent.

Cur. adv. vult.

14th June, 1904. LAYARD C.J.-

The plaintiff is the lessee, from the trustee of the Poyamallie Vihare in Kandy of a certain house and premises situated within the Municipal limits of the town of Kandy.

The question to be decided is whether the Municipal Council of Kandy can compel payment of assessment tax in respect of temple property situated within such limits. The. Legislature has given the Council power to make and assess for certain purposes, specified in the Ordinance No. 7 of 1887, a separate or consolidated rate or rates on the annual value of all houses and buildings of every description and all lands and tenements whatever within the Municipal limits, excepting therefrom only all buildings exclusively appropriated to educational purposes, such as schools, school libraries, and school laboratories, and all buildings exclusively appropriated to religious worship, and all burning and burial grounds, and all buildings in charge of military sentries (section 127 of the Municipal Councils Ordinance, No. 7 of 1887, as amended by section 2 of Ordinance No. 16 of 1900).

The Council has thus power to assess a rate in respect of all houses and buildings and all lands and tenements whatsoever situated within Municipal limits, save those exempted by the proviso to section 127. If that Ordinance stood alone in our Statute Book it is clear that the house and premises occupied by the plaintiff would be liable to assessment under the Ordinance of 1887, although temple property, the house not being exclusively appropriated to religious worship. The respondent, however, contends that the property occupied by him, being temple property, has been by the Proclamation of the 21st November, 1818 (section 21), exempted from all taxation. That section runs as follows:-

" The Governor, desirous of showing the adherence of Government to its stipulation in favour of the religion of the people, exempts all lands which now are the property of temples from all taxation whatever, but certain inhabitants of those villages are liable to perform gratuitous services also to the Crown; this obligation is to continue unaffected. "

The point to be decided in this case has only once been raised in this Court since Municipal Councils were first established by the Ordinance No. 17 of 1865. The first case came before my brother Moncreiff in March, 1904, that a Municipal Council is not entitled under section 127 of the Ordinance No. 7 of 1887 to make and assess any rate on the value of any land the property of a Buddhist t

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